The Defense of Marriage Act (DOMA) and the Call for a Constitutional Amendment

The Baehr v. Lewin decision mobilized opponents of same-sex marriages, who feared that gay marriage would soon be legal in Hawaii. Yet some disagreed over whether Hawaii's potential legalization of gay marriage would necessarily overrule other states'anti-gay marriage laws. Nevertheless, anti-gay marriage legislation was passed on both the state and federal level. Voters in Hawaii adopted a constitutional amendment allowing legislators to ban same-sex marriages, thus making the state's Equal Rights Amendment no longer applicable. In late 1999, the Hawaiian Supreme Court determined that this new ban was effective and refused to recognize same-sex marriages in the state.

The Defense of Marriage Act

In 1996, in response to the Baehr decision, the U.S. Congress passed the Defense of Marriage Act (DOMA). President Clinton signed DOMA into law. The act was designed to prevent the Full Faith and Credit Clause from being applied to states'refusal to recognize same sex marriages. DOMA states in part that "No state, territory or possession of the United States ... shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship."

DOMA does not ban same-sex marriages in itself. Neither does it require any state to ban them. DOMA defines marriage as a union between a man and a woman only. The act also specifically denies federal benefits to same-sex couples. The act states that any federal law that applies to married couples does not apply to same-sex couple: statutory and administrative use of terms such as "marriage" and "spouse" under federal law only apply to heterosexual couples. In addition to the federal law, many states passed their own defense of marriage laws.

The Call for a Constitutional Amendment

In February 2004, President George W. Bush called for a constitutional amendment to protect marriage. The president said that DOMA was vulnerable to attack under the Full Faith and Credit clause, a sentiment echoed by numerous commentators. He stated only way to ensure that DOMA would not be struck down by "activist courts" is through an amendment that would" fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." Proposed amendments have been introduced in Congress, but no vote has yet taken place.

Bush threw his support behind a federal marriage amendment after events in Massachusetts and San Francisco. In late 2003 and early 2004, officials in both places seemingly authorized same-sex marriages.